IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
CARMEN DUNCAN
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IN THE MATTER of an appeal by the Commission to an Umpire from a decision by the Board of Referees given at North York, Ontario, on January20, 2004.
DECISION
Heard at Toronto, Ontario, on October 15, 2004.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The issue in this appeal, filed by the Employment Insurance Commission involves the claimant's request to antedate her claim. The ruling by the Employment Insurance Commission rejecting the antedate request was appealed by the claimant to a Board of Referees with success.
The legislation governing this issue is the Employment Insurance Act, section 10(4) which provides:
10(4) An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made.
The claimant retired from her employment with the University Health Network on January 2, 2003. She applied for unemployment benefits six months following her retirement and at the same time she filed a request dated June 24, 2003, to have her claim antedated to January 2, 2003. An initial claim was made effective June 15, 2003.
It will be observed that pursuant to the provisions of section 10(4) the claimant, to succeed in her antedate request, must show that she had "good cause" for delay throughout the period of delay. The Commission examined claimant's reasons for her failing to make a timely application for benefits and concluded that the claimant's reasons did not provide good cause.
The Commission's grounds of appeal is that the Board erred in law and based its decision on an erroneous finding of fact.
The initial explanations for claimant's delay is recorded on her written request to antedate. I find it more convenient to quote her reasons in full rather than attempt to paraphrase:
The medical doctor attending the claimant's son X* provided information regarding claimant's medical condition in a written report dated July 6, 2003. He was hospitalized and upon his release he required, and received from the claimant daily assistance with activities of daily living - except that in the last several weeks X* was able to manage more of his daily activities of living without his mother's supervision.
In claimant's written submission to the Board of Referees dated December 17, 2003, her reasons for her delay are consistent with those she expressed in her request to antedate and I observe in particular her remarks concerning the stress, distraction and pressure she endured due to her son's illness.
She said in that submission:
"Unfortunately, back in January of 2003 when I retired, my son X* whom I share living accommodations with, suffered a severe seizure brought upon by X* which is a condition he has suffered for quite some time. He was hospitalized for 2 weeks at East General Hospital in January '03. His health is very poor/delicate and he is on medication and requires my supervision and care at all times now. (see doctor's letter in my file at Human Resources). At that time when I should have filed for EI, I was under a great deal of pressure and was completely unaware that I would be eligible for partial benefits. When I realized that I was eligible (through a friend of mine back in July) I immediately applied"...
The claimant was not aware that she may have been entitled to unemployment benefits. Her employer did not provide her with a record of employment (R.O.E.) upon termination of her employment and she complains that possession of that document would have alerted her to exercise her rights.
I interject to say that the Board's partial reliance on the employer's failure to inform the claimant of her rights with regard to benefits is an error. There is no basis for that statement and there is no jurisprudence to support that principle. However, that is not the ratio for the Board's decision. The Board was also critical of the employer for its failure to provide claimant with an ROE in a timely manner. It should be remembered that possession of an ROE is not a requirement for making a claim for benefits.
In its review of the evidence the Board of Referees took note of claimant's reference to the financial hardship imposed by her mandatory retirement and the great pressure she was under because of her son's grave illness. The Board said that it took into consideration the claimant's state of mind and preoccupation at the time she left employment engendered by her son's illness.
The Board in reaching its final conclusion found "good cause" for claimant's delay because of "the great stress and enormous responsibility which claimant shouldered during the period of delay" and determined, as well, that the claimant acted as a "reasonable person in her situation would have done".
In the cited decision of Canada (AG ) v. Albrecht (1985) 1 FC 170, 60 N.R. 213 the Federal Court of Appeal established the test for the determination of good cause". The Court said:
"...when a claimant has failed to file his claim in a timely way and his ignorance of the law is ultimately the reason for his failure, he ought to be able to satisfy the requirement of having "good cause", when he is able to show that he did what a reasonable person in his situation would have done to satisfy himself as to his rights and obligations under the Act."
The position adopted by the Commission is that the claimant's ignorance of the law and her negligence cannot be construed as a "good cause". That is a well established principle. The Commission's submission is that the Board would not reasonably conclude, based on the evidence it received, that the claimant acted as a "reasonable person in similar circumstances would have done". The claimant did not, the Commission asserts, establish good cause for delay each day throughout the period of delay.
The Commission in a convincing submission points out that despite claimant's stress created by her son's illness that illness had been ongoing for ten years and that claimant continued to care for him while she worked. Moreover, the Commission contends that her son's hospitalization in January, following her retirement, was limited to two weeks and that claimant was not prevented from contacting the Commission to ascertain her rights as a reasonable person would have done.
Notwithstanding the basis of the Commission's submission it is my view that there is evidence to support the findings and conclusions of the Board of Referees. The Board chose to accept claimant's evidence that, although she admits she was not aware of her eligibility for benefits, she was distracted by the stress and pressure brought on by her son's illness. The claimant applied for benefits with haste as soon as she made aware that benefits were available to her. She did not exhibit indifference or lack of concern as to her rights.
Because there is evidence to substantiate the Board's decision I am not prepared to interfere and for that reason I dismiss the Commission's appeal.
Appeal dismissed.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Edmonton, Alberta,
November 24, 2004